AMENDMENT OF CONSTITUTION
1. Context
Debate on the 10% ‘forward quota’ Bill saw arguments on the amendment procedure, including whether state Assemblies should ratify the Bill, and questions related to aided and unaided institutions.
2. What is a Constitutional Amendment?
- A constitutional amendment is a formal change or addition to a country's constitution. A constitution is a foundational document that outlines the fundamental principles, structure, and framework of a government, as well as the rights and responsibilities of its citizens.
- Constitutional amendments allow for modifications to this fundamental document without completely rewriting it.
- Amendments are typically used to address issues that were not fully addressed or envisioned when the original constitution was written or to adapt the constitution to changing societal, political, or legal circumstances.
- They can cover various topics, including civil rights, voting procedures, governmental powers and structures, taxation, and more.
- The process for amending a constitution varies from country to country. It often involves a deliberate and formal procedure that requires approval by a designated body or bodies, such as a legislative body (like a parliament or congress), a special constitutional convention, or through a public referendum.
- The requirements for passing an amendment may include specific majority votes, multiple stages of approval, and sometimes a requirement for a certain level of consensus or public support.
- Constitutional amendments are a way to ensure that a constitution remains relevant and effective over time, while still preserving the core principles and values upon which a country's governance is built.
3. What are the different ways to amend Indian Constitution?
The Indian Constitution can be amended through several different methods outlined in Article 368. The methods vary depending on the significance and impact of the proposed amendment.
- Simple Majority in Parliament: Amendments that do not alter the federal structure of the Constitution or affect the powers of states can be made with a simple majority in both houses of Parliament (Lok Sabha and Rajya Sabha). The amendment bill must be passed by a majority of the total members present and voting.
- Special Majority in Parliament: For amendments that do affect the federal structure or the powers of states, a special majority is required. This means that the amendment must be passed by a majority of the total membership of each house of Parliament (not just those present and voting) and by a two-thirds majority of the members present and voting in each house.
- Special Majority and Ratification by States: Some amendments require a special majority in Parliament and ratification by at least half of the state legislatures. This is applicable to amendments that affect the distribution of powers between the center and the states or the representation of states in the Parliament.
- Ratification by States: Certain amendments need ratification by at least half of the state legislatures, without the requirement of a special majority in Parliament. These amendments typically relate to subjects mentioned in the Concurrent List (where both the center and states have jurisdiction).
- Process of Constitutional Conventions: This method has only been used once. The 73rd Amendment Act of 1992, which introduced Panchayati Raj institutions, was enacted through the process of constitutional conventions. The amendment was first discussed and approved by the states in their respective legislative assemblies before being passed in Parliament.
- Process of Constitutional Assemblies: In this method, a proposed amendment is discussed by a constitutional assembly. If the assembly approves the amendment, it is then presented to the President for assent. This method has been used for amendments that affect the executive powers of the President.
4. Procedure to Amend the Indian Constitution
The procedure to amend the Indian Constitution involves several steps, and the specific process can vary based on the nature and impact of the proposed amendment. Here is a general overview of the procedure:
- Introduction of Amendment Bill: The process begins with the introduction of an amendment bill in either house of Parliament (Lok Sabha or Rajya Sabha). The bill can be introduced by a minister or any other member of Parliament.
- Approval by Both Houses: The amendment bill must be passed by both houses of Parliament. The required majority for passing the bill depends on the nature of the amendment:
- For amendments that do not affect the federal structure of the Constitution or the powers of states, a simple majority of members are present and voting is required in each house.
- For amendments that affect the federal structure or the powers of states, a special majority is required. This means that the bill must be passed by a majority of the total membership of each house and by a two-thirds majority of the members present and voting in each house.
- Sending to the President: After both houses of Parliament pass the amendment bill, it is sent to the President for assent.
- President's Assent: The President has the power to either give assent to the amendment bill or withhold it. In most cases, the President gives assent, and the bill becomes law.
- Publication in the Gazette: Once the President's assent is given, the amendment becomes a part of the Constitution. It is published in the official gazette of the Government of India.
- Limitations on Amendments: While the Indian Constitution can be amended, certain core features of the Constitution cannot be altered. These include the federal structure of the country, the supremacy of the Constitution, the democratic and republican nature of the state, and the separation of powers between the executive, legislative, and judicial branches.
- Amendments Requiring Ratification by States: Some amendments, particularly those that affect the federal balance or the powers of states, require ratification by at least half of the state legislatures. The ratification process usually occurs after the amendment bill is passed by Parliament.
- Challenges in Court: If there are legal disputes or challenges regarding the constitutionality of an amendment, they can be taken to the courts. The Supreme Court of India has the authority to review and decide on the validity of constitutional amendments.
5. Major Constitutional Amendments
Some of the major constitutional amendments in India's history that have had a significant impact on the country's governance, society, and legal framework:
- First Amendment Act, 1951: This amendment aimed to curtail the scope of fundamental rights to allow the government to impose restrictions on freedom of speech and expression, and other rights, in the interest of the sovereignty and integrity of India.
- Seventh Amendment Act, 1956: This amendment reorganized states along linguistic lines, leading to the creation of new states and redrawing of boundaries. It was a significant step in addressing linguistic diversity.
- Twenty-Fourth Amendment Act, 1971: This amendment clarified that the Parliament's power to amend the Constitution is not limited by fundamental rights. It was introduced in response to the Golaknath case, which had challenged the Parliament's authority to amend fundamental rights.
- Forty-Second Amendment Act, 1976: Often referred to as the "Mini-Constitution," this amendment was introduced during the period of the Emergency and brought about extensive changes. It aimed to strengthen the central government's powers, restrict judicial review, and curtail fundamental rights.
- Fifty-Second Amendment Act, 1985: This amendment sought to curb defections and promote political stability by introducing anti-defection provisions. It disqualified members of Parliament and state legislatures if they defected from their party.
- Seventy-Third Amendment Act, 1992: This amendment introduced provisions for local self-governance through Panchayati Raj institutions. It aimed to empower rural communities by devolving powers and responsibilities to them.
- Seventy-Fourth Amendment Act, 1992: Similar to the 73rd Amendment, this amendment focused on urban local bodies and introduced provisions for municipal governance, allowing greater autonomy to urban areas.
- Ninety-First Amendment Act, 2003: This amendment introduced a new article (Article 21A) that made education a fundamental right for children between the ages of 6 and 14. It aimed to promote universal elementary education.
- Ninety-Ninth Amendment Act, 2019: This amendment introduced a special provision for the reservation of seats for economically weaker sections in educational institutions and public employment.
- One Hundred and First Amendment Act, 2016 (GST Amendment): This major economic reform introduced the Goods and Services Tax (GST), replacing a complex system of multiple indirect taxes with a unified taxation structure.
- 102nd Constitutional Amendment Act, 2018: Constitutional status to National Commission for Backward Classes (NCBC).
- 103rd Constitutional Amendment Act, 2019: Provided a maximum of 10% Reservation for Economically Weaker Sections (EWSs).
- 104th Constitutional Amendment Act, 2020: Extended the reservation of seats for SCs and STs in the Lok Sabha and state assemblies.
6. Criticism of the Amendment Procedure
- States cannot initiate the amendment (Only Parliament can).
- States have only one way to propose the amendment i.e. create the legislative council in the state.
- The Constitution does not mention the time within which state legislatures ratify or reject the amendment.
- The Constitution is also silent on whether the states can withdraw their approval once given.
- No provision for a special body + Only in a few cases, the consent of the state legislatures is required.
- No provision for holding a joint sitting.
- Wide scope for taking matters to the judiciary due to vague provisions.
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For Prelims: Constitutional amendment, Simple Majority, Special Majority, Constitutional Conventions, Anti-defection law, National Commission for Backward Classes (NCBC), Reservation for Economically Weaker Sections (EWSs), Goods and Services Tax (GST).
For Mains: 1. Discuss the significance and challenges associated with the process of amending the Constitution of India. (250 Words).
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Previous year Question1. Consider the following statements (2013) 1. An amendment to the Constitution of India can be initiated by an introduction of a bill in the Lok Sabha only.
2. If such an amendment seeks to make changes in the federal character of the Constitution, the amendment also requires to be ratified by the legislature of all the States of India.
Which of the statements given above is/are correct?
(a) 1 only (b) 2 only (c) Both 1 and 2 (d) Neither 1 nor 2 Answer: d 2. The Parliament of India acquires the power to legislate on any item in the State List in the national interest if a resolution to that effect is passed by the (UPSC 2016) A. Lok Sabha by a simple majority of its total membership B. Lok Sabha by a majority of not less than two-thirds of its total membership C. Rajya Sabha by a simple majority of its total membership D. Rajya Sabha by a simple majority of not less than two-thirds of its members present and voting Answer: D |
Source: The Indian Express
